Condo Lingo – Common Errors and Misconceptions Part 3

This is the third post in this series. As the name implies, in this series we will discuss some common terms and phrases that are used incorrectly by owners and others in the industry. Today’s post focuses on terms related to the maintenance of the property.

Maintain and Repair

Many people may use “maintain” and “repair” interchangeably in everyday conversations but in condominiums this could lead to significant errors. These two terms have definitions in the Condominium Act, 1998, that do not match their ordinary usage. The Act defines “maintain” as including the obligation to repair after normal wear and tear but does not include the obligation to repair after damage. “Repair after damage” includes the obligation to repair and replace after damage or failure. For example, asphalt shingles that deteriorate over time and require repairs would be maintenance but the replacement of shingles that were ripped off during a windstorm would be repair after damage.

It is important to understand the difference between maintenance and repair after damage because a condominium’s declaration could make owners responsible for maintenance of a component but not repair after damage. Similarly, a condominium could be responsible for repairing after damage the common elements but not maintaining them. As such, it is vital to review each condominium’s declaration to determine the maintenance and repair obligations of the owners and condominiums.

Lastly, it is important to note that a declaration may change the maintenance and repair after damage obligations in the Act and most declarations do alter them. Section 91 permits a declaration to alter the obligations by providing that: a) the owners repair after damage their units; b) the owners maintain the common elements; c) the owners maintain or repair after damage their exclusive use common elements; and d) the condominium maintain the units. Of note, currently owners cannot be responsible for repairing after damage common elements that are not exclusive use common elements.

Unit Definitions vs. Standard Unit By-law

Another common misconception is that a standard unit by-law is the same as the unit boundaries in the declaration. Alternatively, sometimes people believe the standard unit by-law can change the unit boundaries. This is untrue. The documents have different purposes and should not be used interchangeably.

To create a condominium the declarant must register a declaration and description that contain certain information, including a description of the units. The declaration and description define the boundaries of the units. If an item is not within the unit boundaries it forms part of the common elements (or exclusive use common elements). For newer condominiums the unit boundaries are described in Schedule C. For older condominiums the unit boundaries may be defined in other schedules or the body of the declaration.

Condominiums can create by-laws to establish what constitutes a standard unit for each class of unit (i.e. residential, parking, locker). These are called standard unit by-laws. (Note: a declarant could provide a schedule on turn-over defining the standard units instead of registering a by-law).The purpose of these by-laws is to determine the responsibilities for repairing the improvements to the units after damage and insuring them. They do not change the unit boundaries but they could change the obligations for repairing the improvements to the units.

The way I normally explain the difference is this: the declaration and description describe the physical boundaries of the unit but the standard unit by-law defines the materials used. For example, the unit boundary is often the “backside of the drywall” which means the unit includes the drywall. A standard unit by-law could not change the boundary to exclude the drywall from the unit. That could only be achieved by amending the declaration and description. However, the standard unit by-law could indicate that the standard unit includes the drywall, in which case the condominium would be responsible for insuring it and the proceeds from the condominium’s insurance would be used to repair the drywall. Alternatively, the standard unit by-law could exclude the drywall from the standard unit (meaning it is an “improvement” to the unit), in which case the owners would be responsible for insuring it.

Maintenance, repair, and insurance are the most complex topics in condominiums. We will have more posts on these topics in the coming weeks. Stay tuned!

As always, if you have any suggested topics, please let us know.